[Cite as State v. Holly,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95454

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ERIC HOLLY DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-536604

BEFORE: Boyle, J., Blackmon, P.J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: May 12, 2011 ATTORNEYS FOR APPELLANT 2

Robert L. Tobik Cuyahoga County Public Defender BY: Erika B. Cunliffe Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Jeffrey S. Schnatter Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

MARY J. BOYLE, J.:

{¶ 1} Defendant-appellant, Eric Holly, appeals his conviction and sentence. We

affirm his conviction and vacate his sentence in part.

Procedural History and Facts

{¶ 2} In June 2010, the grand jury indicted Holly on five counts: two counts of 3

felonious assault in violation of R.C. 2903.11(A)(1) and (A)(2); kidnapping in violation of

R.C. 2905.01(A)(3); domestic violence in violation of R.C. 2919.25(A); and violating a

protective order in violation of R.C. 2919.27(A)(1). The allegations giving rise to the

charges were that, on April 14, 2010, Holly rammed his vehicle several times into a Dodge

Caravan that his wife was driving, “trying to run her off the road.” Once the van was

stopped, he jumped through the broken window of the van, grabbed his wife by her hair, and

then punched her five to six times.

{¶ 3} Holly initially pleaded not guilty to the charges but subsequently withdrew his

guilty plea after reaching an agreement with the state. He pled guilty to a single count of

felonious assault, a second degree felony, and misdemeanor charges of domestic violence and

violating a protection order. The remaining counts were dismissed. The trial court accepted

Holly’s guilty plea and ultimately sentenced him to a total of six years in prison, ordered

restitution to the victim, and permanently barred Holly from having any contact with the

victim. The trial court also notified Holly that he is subject to a mandatory term of three

years postrelease control when he is released from prison.

{¶ 4} Two days following sentencing, Holly, pro se, filed a motion to vacate his

guilty plea. He further requested the appointment of appellate counsel to represent him on

appeal. The trial court denied his motion to withdraw his plea but appointed counsel for a

direct appeal. 4

{¶ 5} Holly timely filed this direct appeal, raising the following two assignments of

error:

{¶ 6} “[I.] Mr. Holly’s guilty plea was not entered knowingly and intelligently

because it was conditioned on the promise that he would first receive an evaluation by TASC

prior to sentencing and that evaluation never took place.

{¶ 7} “[II.] The sentence imposed is contrary to law, violates Mr. Holly’s right to

due process, and must be vacated.”

Direct Appeal

{¶ 8} Initially, we address the state’s contention that Holly’s assignments of error are

barred on the grounds that he should have raised these in a direct appeal. Relying on this

court’s decision in State v. Muldrew, 8th Dist. No. 85661,

, the state argues

that Holly is improperly “bootstrapping” arguments in an appeal of a post-sentence motion to

vacate a guilty plea — arguments that it maintains should have been raised in a direct

appeal. But our review of the record reveals that Holly timely commenced this appeal within

30 days of the trial court’s sentencing of him. And although he included the trial court’s

judgment denying his motion to vacate his guilty plea, he additionally attached the final

sentencing journal entry to his notice of appeal and specifically stated that he was appealing

his conviction. We therefore find that Holly’s arguments are not barred and have been

properly raised in a direct appeal. 5

{¶ 9} We now turn to the merits of each assignment of error.

Crim.R. 11 and Voluntariness of the Plea

{¶ 10} In his first assignment of error, Holly argues that his guilty plea should be

vacated because the plea was not entered knowingly, intelligently, or voluntarily. We

disagree.

{¶ 11} Crim.R. 11(C)(2) provides that “[i]n felony cases the court may refuse to accept

a plea of guilty * * * , and shall not accept a plea of guilty * * * without first addressing the

defendant personally and doing all of the following:

{¶ 12} “(a) Determining that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty involved, and if

applicable, that the defendant is not eligible for probation or for the imposition of community

control sanctions at the sentencing hearing.

{¶ 13} “(b) Informing the defendant of and determining that the defendant understands

the effect of the plea of * * * no contest, and that the court, upon acceptance of the plea, may

proceed with judgment and sentence.

{¶ 14} “(c) Informing the defendant and determining that the defendant understands

that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against

him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and

to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which 6

the defendant cannot be compelled to testify against himself or herself.”

{¶ 15} The underlying purpose of Crim.R. 11(C) is to convey certain information to a

defendant so that he or she can make a voluntary and intelligent decision regarding whether to

plead guilty. State v. Ballard (1981),

,

. “The

standard for reviewing whether the trial court accepted a plea in compliance with Crim.R.

11(C) is a de novo standard of review.” State v. Cardwell, 8th Dist. No. 92796,

, ¶26, citing State v. Stewart (1977),

,

.

“It requires an appellate court to review the totality of the circumstances and determine

whether the plea hearing was in compliance with Crim.R. 11(C).”

{¶ 16} The gravamen of Holly’s argument is that his plea was conditioned on him

receiving a TASC evaluation, which he never received. TASC is an acronym for a program

known as “Treatment Alternatives to Street Crime”; the program provides community-based

treatment for drug or alcohol dependent offenders. According to Holly, he entered his plea

with the understanding that he would undergo a TASC evaluation and the failure to provide

one negates the voluntariness of his plea.

{¶ 17} We find no evidence in the record to support Holly’s contention. While the

trial court noted that there had been a request for a TASC referral at the plea hearing, there

was absolutely no representation made that one would be provided or that his plea was

conditioned on receiving one. Our review reveals that the trial court fully complied with the 7

requirements of Crim.R. 11. The trial court engaged in a colloquy with Holly prior to

accepting his plea, fully informing him of all his constitutional and nonconstitutional rights.

Holly expressly represented that he was entering the plea voluntarily and that he had not been

promised any sentence or any other specific promises.

{¶ 18} We further note that, aside from there being no evidence in the record that

Holly was promised a TASC assessment as a condition of changing his plea, we find no basis

to conclude that a TASC assessment did not occur. The docket reflects that on June 1, 2010,

the same day as Holly’s change of plea hearing, the trial court journalized Holly’s plea and

referred him “for TASC drug/alcohol assessment.” At the sentencing hearing, approximately

three weeks later, Holly never indicated that the TASC evaluation did not occur. Nor did his

defense counsel raise any objection prior to sentencing. We, therefore, find no basis to

conclude that the referral did not occur.

{¶ 19} We find no merit to Holly’s claim that his plea was not voluntary and overrule

the first assignment of error.

Sentence

{¶ 20} In his second assignment of error, Holly argues that his sentence is contrary to

law because the trial court had no authority to order the additional sanction of permanently

barring him from having any contact with the victim. Holly contends that the imposition of 8

an indefinite “no contact” order renders the entire sentence void and that he is entitled to a

new sentencing hearing.

{¶ 21} It is well settled that a trial court may only impose a sentence as provided for by

law. State v. Bruno, 8th Dist. No. 77202,

, citing State v. Eberling (Apr. 9,

1992), 8th Dist. No. 58559. While a “no contact” order may be properly imposed as a

sanction pursuant to R.C. 2929.25 when a trial court places a defendant on community

controlled sanctions, we find no authority in Ohio sentencing law to allow for such a penalty

when imposing a prison term, nor does the state cite to any authority. Once the trial court

imposed a prison term and executed Holly’s sentence, the authority to impose any “no

contact” order following Holly’s release from prison lies with the Adult Parole Board.

Indeed, Holly faces a mandatory term of three years of postrelease control following his

release from prison.

{¶ 22} Contrary to Holly’s assertion, however, this unlawful part of his sentence does

not render his entire sentence void, entitling him to a new sentencing hearing. See State v.

Fischer,

,

,

. Instead, consistent with our

authority under R.C. 2953.08(G), we vacate this portion of Holly’s sentence that includes an

indefinite “no contact” order. The remainder of his sentence, which includes the imposition

of six years in prison and a restitution order, that has not been challenged, we affirm in its

entirety. 9

{¶ 23} The second assignment of error is sustained in part and overruled in part.

{¶ 24} Conviction is affirmed, sentence is modified, and case remanded. Upon

remand, the trial court is instructed to correct the sentencing entry to eliminate the indefinite

“no contact” order.

It is ordered that appellee and appellant share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

MARY J. BOYLE, JUDGE

PATRICIA ANN BLACKMON, P.J., and EILEEN A. GALLAGHER, J., CONCUR